# Crystal E. v. Department of Child Safety

> Court of Appeals of Arizona · March 7, 2017 · 241 Ariz. 576

URL: https://www.frixlaw.com/law-library/cases/6480178

## Case

- **Full name:** CRYSTAL E. v. DEPARTMENT OF CHILD SAFETY, M.E.
- **Court:** Court of Appeals of Arizona
- **Decided:** March 7, 2017
- **Citations:** 241 Ariz. 576; 760 Ariz. Adv. Rep. 20; 390 P.3d 1222; 2017 Ariz. App. Unpub. LEXIS 247; 2017 WL 897343
- **Precedential status:** Published
- **Opinion:** Concurrence by Thumma
- **Judges:** Brown, Orozco, Thumma
- **Cited by:** 122 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6480178

## How later opinions describe it (automated extraction)

- holding that a child being adoptable is sufficient to find termination of parental rights is in the child’s best interests
- holding that mother’s failure to challenge one of the grounds for termination constituted waiver and abandonment of any contention that the juvenile court erred by terminating her parental rights on that ground
- explaining that a party’s failure to challenge the time-in-care ground constitutes waiver and abandonment of the claim
- explaining that failing to challenge the statutory grounds for termination constitutes waiver of the claim
- holding that parent’s failure to challenge time-in-care finding constituted abandonment and waived “any contention that the court erred in granting severance on that basis.”

## Opinion text

THUMMA, J.,
specially concurring:
¶ 12 I join, without reservation, the court’s analysis addressing waiver and best interests. By challenging only the substance abuse ground on appeal, Mother waived any challenge she may have had to the 15-months time-in-care ground. And although Mother preserved the best interests issue, she has not shown that the superior court abused its discretion in finding that termination was in the best interests of M.E.
¶ 13 The waiver issue evidenced in this appeal is one that this court, unfortunately, sees with some frequency. In general, an appeal challenging fewer than all of the statutory grounds for termination the superior court found were proven at trial will not result in a reversal, absent a showing the best interests finding was erroneous. Such an appeal is fatally flawed, from the outset, and merely delays finality.
¶ 14 Given the legitimate interest in furthering finality and to avoid the suggestion of any issue that could result in delay, cf. John M. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 320 , 324-25 ¶ 15, 173 P.3d 1021 (App. 2007), I write separately to address the merits of the 15-months time-in-care ground. 3 Even apart from waiver, the trial record supports the superior court’s conclusion that DCS proved the 15-months time-in-care ground. See A.R.S. § 8-533(B)(8)(c). By the time of the trial, M.E. had been in care for more than 15 months. The trial evidence demonstrates that DCS had made diligent efforts to provide appropriate reunification services, including parent aide services, skills training, supervised visits, transportation, substance abuse assessment and treatment, drug testing, psychological evaluation and individual counseling. Notwithstanding these efforts, the trial evidence shows Mother had been unable to remedy the circumstances that caused M.E. to be in an out-of-home placement and that there is a substantial likelihood that she would not be capable of exercising proper and effective parental care and control in the near future. See A.R.S. § 8-533(B)(8)(e).
¶ 15 Mother first refused to participate in any services other than visitation. She began mental health counseling in March 2015, but frequently failed to attend or cancelled sessions. Mother refused to participate in drug testing for many months, failed to complete court-ordered drug testing and then tested positive for methamphetamine for three consecutive months shortly before trial. The DCS ongoing case manager testified that unresolved barriers to family reunification also included “the lack of persistent and individual counseling, ... a lack of employment, ... a lack of parenting skills due to inability to recognize danger situations and how to protect her child.”
*580 ¶ 16 The case manager testified Mother was not able to progress to unsupervised visits given her “inconsistency in her services that we had requested of her.” Although Mother’s supervised “visitations went very well,” they could not progress to unsupervised because of Mother’s “inconsistency with her UA’s, her inconsistency with her counseling.” The case manager testified Mother had not been able to remedy the circumstances that caused M.E. to be in out-of-home care and that there was a substantial likelihood she would not be able to exercise parental care and control in the near future.
¶ 17 Mother suggests there was conflicting evidence on some of these points at trial. But it is not the role of this court to reweigh the trial evidence. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278 , 282 ¶ 12, 53 P.3d 203 (App. 2002) (citations omitted). On this record, on the merits, the superior court did not abuse its discretion in concluding DCS proved the 15-months time-in-care ground for termination. See A.R.S. § 8-533(B)(8)(c).
¶ 18 Other than adding this discussion of the merits of this ground for termination, I join, without reservation, the court’s analysis addressing waiver and best interests.
. Given waiver, the majority stops short of addressing the merits of the 15-months time-in-care ground, a position I understand and respect. It would seem, in a case like this, that the legitimate interest in ensuring finality properly could be seen as outweighing the majority’s concern about “judicial economy." Consistent with the majority's view that this court has appellate jurisdiction to address the merits of the 15-months time-in-care ground, in this case, on this record, I am doing so.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6480178. Public record. Not legal advice.